Steubenville's Sudden Immunity Deals Could Break the Defense's Case

In the first two marathon days of the Steubenville rape trial, defense attorneys and Ohio state prosecutors have made it crystal clear that a guilty verdict will hinge on two questions: Did the alleged victim consent to at least two separate sexual assaults? And how impaired was her judgment by alcohol? Heading into a weekend full of dozens of student witnesses and perhaps testimony from the victim herself, a new twist may see a Steubenville football player and the prime suspect's best friend making the best case for the 16-year-old girl yet.

The three witnesses are current and former Steubenville students. One previously testified that he took a nude picture of the teen girl but later deleted it. Another told investigators he took video of the girl in the back of a car, but also deleted it. Also, the reported rape occurred in the basement of his home. A third was present during an infamous video in which people in the basement mock the teen girl.

The two witnesses who deleted the image and video of the girl are also Steubenville students who testified in a key pre-trial hearing of the Steubenville case in October. Mark Cole II is the witness who said he took video of the girl in the back of his Volkswagen Jetta, and the other appears to be Anthony Craig. Both are friends of the accused, Trent Mays and Ma'lik Richmond. The third witness on the docket apparently saw the taping of the now infamous 12-minute video of Michael Nodiaonos making fun of the alleged victim.

In January, Ohio Attorney General Mike DeWine had suddenly said that, contrary to previous understanding of the case, the three pre-trial witnesses would not have an immunity deal, but that they wouldn't be held legally accountable for their actions in this trial. And so suddenly Cole didn't want to testify — presumably because of the national attention, ratting out his good friend and quarterback, and, of course, possible criminal follow-up charges. But he just struck an immunity deal, and that may be a big break for a prosecution.

The October pre-trial statements from the three Steubenville boys — and the continuation of that line of testimony, essentially providing eyewitness details against their friends' defense — may be of paramount importance in the prosecution's assertion that Jane Doe was too drunk to consent. "She wasn't capable of walking on her own and was stumbling as walking," Cole, who played with Mays on Steubenville's Big Red football team, told the court in October, adding that he filmed a video of one part of the alleged assault — when Mays was penetrating Doe with his fingers in his Jetta as Cole, Mays, Richmond, and Jane Doe drove to Cole's house, where he promptly deleted it. "He said, at his house, Mays attempted to get the victim to perform oral sex on Mays," reported Mark Law of the Ohio Valley's Herald Star at the time. "Cole did say the victim wasn't moving at his house when the sexual assault took place." Since Wednesday, prosecutors have been trying to make the case that the alleged victim was impaired, as the defense has been making its own strange case — that she was drunk, but not drunk enough to say no. All gruesome photos and text messages aside, if the girl wasn't cable of walking before the car ride, and if she wasn't moving while Mays made moves on her, that may be the biggest thing the prosecution has going for it other than the girl's word. (Update: Cole admitted in testimony on Friday to filming the video and uploading it to YouTube, and described the scene in the car: "Trent started fingering her, that's when I took out my phone and started filming," he said, and ABC News reports that Cole said he could see the alleged victim's vagina. Cole deleted the video the morning after: "It was one of those moments you realize you did something wrong and stupid," he said)

According to his previous testimony, Craig, a wrestler at Steubnville High who describes himself as Mays's best friend, said he saw the video Cole had recorded of Mays penetrating the girl with his fingers in the car — and that he witnessed Mays's alleged attempt, at a party later, to force the girl to perform oral sex on him. From the notes on Craig's testimony:

Craig, who admitted to having a relationship with the victim, said he saw the victim naked in Cole's basement. He said he saw Richmond laying beside her but couldn't tell what Richmond was doing. He said Mays was smacking his penis off her side.

Craig said the victim was not responsive or participating.

That's a key argument: "not responsive or participating" is in lockstep with the prosecution's argument that the girl was too impaired to consent. Craig also testified in October that Mays sent him a picture of a naked Jane Doe the next day, which may tie in to Mays's charge of "illegal use of a minor in nudity-oriented material" and which may be one of the pictures uncovered from massive phone logs in Thursday's marathon hearings.

If Craig and Cole's testimony from today is what they told the court in October, then it will be damaging for the defense's prime strategy of painting the alleged victim as either cognitive or not being that drunk. (Update: The judge granted them both immunity after a discussion late Thursday night, and Craig testified on Friday that he witnessed a sex act but that it "was not violent." He also says he did consider the act he saw to constitute rape.) (Update No. 2: Looks like Craig is contradicting his previous testimony.) Adam Nemann, one of Mays's two defense lawyers, tried to paint Doe's sobriety as a kind of moving target, telling The New York Times that the state's case is "difficult to prove, especially when you have various stages of drinking, various times in which the alleged sexual conduct occurred which still hasn’t been pinned down yet." One witness from Wednesday's hearings testified that Doe was slurring and stumbling even before leaving with Mays and Richmond. Which leads us to...

What the Timeline of August 11 Can Tell Us

If the defense wants to say that Doe's impairment was vacillating throughout the night, then Craig's testimony in particular would appear to at least partially contradict that theory. Here's a rough timeline of the night in question, based on what we know from pre-trial testimony, evidence, and the hours of testimony so far:

Party No. 1: Doe had not left with Mays and Richmond at this point.

Witness #1, a female friend of the alleged victim who took the stand this week, says that Doe was slurring at this point. "She was slurring her words and she would stumble when she walked," the witness said.

WTRF-TV reported that "the victim and friends were drinking vodka, beer and mixed drinks at a home on Aug. 11, when she became increasingly intoxicated and her speech began to slur."

Party No. 2: Jane Doe leaves with Mays and Richmond for the second post-game party. This is where that infamous picture of Mays and Richmond carrying Doe by her ankles is taken. And it's at this party where the girl vomits, possibly indicating that she is intoxicated. "Several witnesses said that once outside, the girl needed to stop in the street because she was sick again," reads an ABC News report. And Richmond, according to his interview with ABC, says he witnessed her vomiting. "She throws up on her blouse and takes her blouse off ... and then she asked for something to drink and I gave her my jacket to cover her up," Richmond told ABC.

The Car Ride: This is where Cole's testimony matters, and it's where the first of the alleged sexual attacks occurred. Nemann and the defense claim that it can't be proven what kind of state this girl was in at this time. Cole, who driving in the car and stopped to videotape the alleged attack, has testified that Doe was incapable of walking on her own. Couple that with her vomiting at the previous party, and the defense's argument of Doe not being that drunk becomes that much more difficult to prove.

Party No. 3, at Cole's House: This is where the second attack by Mays allegedly occurred, and you have Craig and Cole saying that Mays was forcing Doe to perform oral sex on him, and that she was too unresponsive to do so. Craig has testified that Mays was "smacking his penis off her side." Evan Westlake, another eyewitness who testified in the pre-trial hearing, said that while this was happening, Richmond was beside the girl on the couch, penetrating her with his fingers. It was also at this party where a previous witness said the girl the "drunkest person in the room."

If the defense continues to go with its strategy of telling the press and Judge Thomas Lipps that the alleged victim was cognitive and capable of making decisions, then Cole's and Craig's testimony — about a girl so unresponsive that someone could not force oral sex on her — could be the most damaging yet. At least until the girl herself takes the stand, and with a full weekend of marathon sessions at Jefferson County Juvenile Court, the drama is continuing to unfold. (You can watch a live stream, with occasional blackouts for the underage testimony, right here.)